High Court stops Alder Hey taking action against 'whistleblower'

A High Court injunction has been issued to prevent Alder Hey Children’s Foundation Trust from staging a meeting which could have led to the dismissal of a paediatric surgeon who had raised concerns about safety.

Consultant paediatric surgeon Edwin Jesudason yesterday gained the order which prevents the trust from staging a panel meeting at which he could have been dismissed from his job. The meeting had been scheduled for tomorrow.

Lawyers for the surgeon convinced the judge that the trust had breached its contract with him by not following its conduct and capability process.

The court heard Mr Jesudason had raised safety concerns about the surgery department in 2009 which led to an internal review by the Royal College of Surgeons. Details of the concerns were not revealed in court.

Fellow surgeons at the foundation trust told managers in January this year that they could no longer work with Mr Jesudason, despite him being on secondment in the USA since 2010. Some complained of stress and ill-health and claimed they were seeking help from their GP.

Mr Jesudason did not attend the hearing and is not due to return to the UK until April 2013.

His legal team claim the complaints against him amounted to “victimisation” by colleagues and the trust which was using the breakdown of relationships to justify its actions.

The court heard that instead of following the usual conduct and capability process for employees the trust’s head of human resources Richard Jones called in an outside consultancy, the Foresight Partnership, to look into issues within the surgery department.

In its report the Foresight Partnership concluded there were major problems within the department and said it could “envisage no circumstance” in which the surgeons could work together.

Damian Brown QC argued that allowing the process to continue would “in effect be a victimisers and discriminators charter”.

“His claim is that he is a whistleblower. He is suffering at the moment because he has raised whistleblowing concerns,” Mr Brown said.

“The trust is using the classic break-up line ‘it’s not you, it’s me’.”

Simon Galton QC, for the trust, argued Mr Jesudason’s ability as a clinician was never in question.

He said: “Nobody is saying he can’t do his job. This is a matter of teamwork and the ability of others to get on.”

Timothy Brennan QC, deputy judge of the Queen’s Bench Division, granted the injunction. He said the background to the case was “rich in detail” but that he was unable to reach a judgement about the whistleblowing claims in the time available to the court.

He said: “In my judgement there is quite clearly a serious question to be tried as to whether Mr Jesudason is right that the conduct and capability procedure is not engaged in this case.”

Costs totalling £16,000 were awarded against the hospital. A trial to rule on the whistleblowing claims and the correct process to be followed will be held before the end of January 2013.

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